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HomeMy WebLinkAbout97-2154 civilJOSEPH T. GEMBUSIA and NANCY GEMBUSIA, his wife, PLAINTIFFS JENNIFER L. PHELABAUM, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-2154 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., June 14, 1999:-- On May 29, 1996, one of the plaintiffs herein, Joseph T. Gembusia, and his son Bryan Gembusia, were in an automobile accident with defendant, Jennifer L. Phelabaum. On August 19, 1996, at 4640 Civil 1996, a writ of summons was filed by Bryan Gembusia against Jennifer L. Phelabaum. The sheriff made service on defendant on August 28, 1996. On March 5, 1997, Richard Wix, Esquire entered his appearance for defendant. On April 1, 1997, Wix filed a praecipe on plaintiff to file a complaint. The complaint was filed on April 25, 1997. The case went to arbitration and damages were awarded to Bryan Gembusia on April 23, 1998. The case was marked satisfied on July 1, 1998. On April 24, 1997, within the first year of the two year statute of limitations for 97-2154 CIVIL TERM personal injury actions,~ plaintiffs herein, through Leslie Fields, Esquire, the same attorney who represented their son in the companion case, filed a complaint against defendant Jennifer L. Phelabaum, seeking damages arising out of the same accident that occurred on May 29, 1996.2 This time the sheriff filed a return of not found on April 28, 1997. Fields then forwarded the complaint to Wix. She believed that Wix was authorized to and would accept service of the complaint. Over a year later on June 17, 1998, a half month after the statute of limitations had expired, Wix's law firm filed preliminary objections by defendant to plaintiffs' complaint raising lack of personal service and lack of personal jurisdiction. Plaintiffs filed preliminary objections to the preliminary objections. The complaint was reinstated on August 4, 1998, and the sheriff made service on defendant on August 7, 1998. On September 10, 1998, defendant filed an answer with new matter that raised as an affirmative defense the statute of limitations? On September 21, 1998, after briefs were filed and oral argument, an order was entered by Hess, J., that "lilt appearing that the complaint in this matter has been served on the defendant, the preliminary objections of the plaintiff are DISMISSED as moot." On October 1, 1998, plaintiff filed a reply to defendant's new matter. The parties then engaged in discovery. 42 Pa.C.S. § 5524. Nancy Gembusia's claim is for loss of consortium. Pa. Rule of Civil Procedure 1030(a). -2- 97-2154 CIVIL TERM On February 12, 1999, defendant filed a motion for summary judgment. The motion sets forth that "[B]ecause the Plaintiffs failed to make reasonable efforts at serving the Defendant, their claims are barred by the statute of limitations." The motion was briefed and argued on May 26, 1999. In Lamp v. Heyman, 469 Pa. 465 (1976), the Supreme Court of Pennsylvania held that a cause of action will remain effective only if the plaintiff "refrains from a course of conduct that serves to stall in its tracks the legal machinery that he has just set in motion." The Court stated: [W]e now conclude that there is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the processes of justice as speedy and efficient as possible .... Our purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations. (Emphasis added.) (Footnote omitted.) In Leidich v. Franklin, 394 Pa. Super. 302 (1990), the Superior Court of Pennsylvania stated that "There is no mechanical approach to apply to determine what constitutes a good faith effort to effectuate service, though the plaintiff has the burden of showing his efforts were reasonable." In Rosenberg v. Nicholson, 408 Pa. Super. 502 (1991), the Superior Court stated "Service of process upon the defendant is designed to provide him with notice of the lawsuit. Notice is extremely important, as it is -3- 97-2154 CIVIL TERM the constitutional touchstone for the power of the court to act." Granting summary judgment, the Court concluded that: [i]t is not necessary the plaintiff's conduct be such that it constitutes some bad faith act or overt attempt to delay before the rule of Lamp will apply. Watts v. Owens-Corning Fiberglas Corp., 353 Pa. Super. 267, 509 A.2d 1268 (1986), appealdenied, 514 Pa. 632, 522 A.2d 559 (1987). Simple neglect and mistake to fulfill the responsibility to see that requirements for service are carried out may be sufficient to bring the rule in Lamp to bear, Weiss v. Equibank, 313 Pa. Super. 446, 460 A.2d 271 {1983). Thus, conduct that is unintentional that works to delay the defendant's notice of the action may constitute a lack of good faith on the part of the plaintiff. Id. (Emphasis added.) The present case is not a situation where a writ of summons was filed and there was no attempt to effectuate service as in Lamp. Plaintiff's counsel filed a complaint and attempted service by the sheriff. When the sheriff on April 28, 1997, filed a return of not found for the same defendant that Wix was representing in the companion case involving the same accident, Fields then sent the complaint to Wix. On April 25, 1997, Wix had just received the complaint from Fields in the son's case.4 On these facts there was no bad faith in plaintiffs' counsel's belief that under those circumstances Wix would accept service of the complaint. Wix, however, (1) never notified counsel that he would not accept service, (2) never sent the complaint back to counsel, and (3) did not file any responsive pleading. He put the complaint in a drawer and did nothing for over a year until on June 17, 1998, a month and a half after the statute of limitations ran, he conveniently got the complaint out of the drawer and had an attorney in his firm file 4 It was a writ of summons that had previously been served on defendant. -4- 97-2154 CIVIL TERM preliminary objections raising lack of personal service and personal jurisdiction. This was at a point after the award had been entered in the son's companion case on April 23, 1998, but before that award was satisfied on July 1, 1998. Being the same attorney who represented defendant in the first and second suits involving the same accident, Wix had notice of the second suit. While the Superior Court stated in Rosenberg, that simple neglect and mistake to fulfill the responsibility to see that the requirements of service are carried out may be sufficient to bring about the rule in Lamp to bear, it also said that it is unintentional conduct that works to delay the defendant's notice of the action that constitutes the defense. Those are not the facts here. In Lamp, the Supreme Court stated that its purpose was "to avoid the situation in which a plaintiff can bring an action, but, by not making a good faith effort to notify a defendant, retain exclusive control of it for a period in excess of that permitted by the statute of limitations." When Wix's law firm filed preliminary objections to the complaint of plaintiff, the complaint had never been personally served on defendant. Wix was acting on the very complaint that Fields sent him over a year before. That is hardly exclusive control of the case by Fields. In Breinig v. Newburg Walker & Rogers A Joint Venture, et al., 14 Carbon County L.J. 223 (1995), plaintiff, on May 6, 1991, instituted suit by a writ of summons against numerous defendants. Two of the defendants, Frank Chiapetta and Blasting Analysis International (BAI), were not served. In September, 1991, plaintiffs filed a complaint but made defective service against Chiapetta. Chiapetta gave that complaint -5- 97-2154 CIVIL TERM to his attorney who told him to do nothing because he was not properly served. The attorney was representing Chiapetta and BAI generally, and he was also defending two other cases arising out of the same project which was the subject of this suit. On October 24, 1994, Chiapetta's and BAI's attorney filed preliminary objections attacking the court's jurisdiction for lack of personal service. President Judge Lavelle dismissed the preliminary objections holding, inter alia, that the defense attorney's: [c]onduct constituted a waiver of personal service and Chiapetta and BAI are subject to the jurisdiction of this court. To rule otherwise would, in effect, grant a judicial imprimatur to defense stealth tactics which we find both unacceptable in legal practice and unworthy of a member of the bar. We believe that when a lawyer receives and thereby accepts service of legal documents from another lawyer in a lawsuit, he is duty bound by his oath to the court and the bar to disclose his interest and role, whether official or unofficial, in the case. At the very least, the attorney should return the documents to the sending lawyer with a message to send no more. The day of 'snap' judgments and ambush motions for dismissal of cases due to technical defects in pleading is now over. The notion that a lawyer must protect a client by any means has also long passed. A lawyer has a higher duty to the court and to the interests of justice than to his or her client. That duty requires the utmost candor, honesty and trust in dealing with opposing counsel and the court. In the case sub judice, if Wix was not authorized to accept service of the complaint that was sent to him in May, 1997, when he was the attorney of record for the same defendant in the companion case involving the same accident, he should have immediately returned it to Fields who obviously would have found a way to serve defendant. Fields was careless in not nailing down service of the complaint; however, the rule in Lamp is to prevent a plaintiff from causing delay in "the legal machinery that -6- 97-2154 CIVIL TERM he has set in motion." We believe that Judge Lavelle hit the nail on the head in Breinig. For Wix to have received the complaint and then wait over a year to file preliminary objections to that "unserved" document does not warrant our attributing delay to plaintiffs such as to warrant a dismissal of their suit. We find that there was a waiver of personal service of the complaint before the statute of limitations ran. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this ~ [~'~ day of June, 1999, the motion of defendant for summary judgment, IS DENIED. Charles T. Mackin, Esquire For Plaintiffs Girard E. Rickards, Esquire Wix, Wenger &Weidner For Defendant :saa By th~ C0U~t, Edgar B. Bayley, J. -7-